5.  The applicant was born in 1958 and lives in Bitola. He is a taxi driver.
6.  On 2 November 2005 an investigating judge of the Bitola Court of First Instance (“the trial court”) heard, in the presence of the public prosecutor alone, oral evidence from E.J and R.M., suspected migrants from Albania (“the migrants”), who had attempted to enter Greece illegally from the territory of the respondent State. Both of them waived the right to an interpreter and gave evidence in Macedonian. According to the court record, they gave details as regards their travel from Albania to Bitola, a city located near the border with Greece. Both confirmed that at Bitola bus station, they had asked a taxi driver to take them to Greece, but the latter had refused because they had no travel documents.
7.  E.J. further stated:
“... My friend R. (referring to R.M.) stopped another taxi driver. He was the one who drove us to a water canal. We told him that we wanted to go to Greece and that we didn’t have any travel documents, but he said: ‘I will take you, but each of you will have to pay 160 euros (EUR)’. We immediately paid. While driving, he advised us, in case the police appeared, to leave the car and run. In case we were apprehended, we were supposed to deny that we knew him or that he knew what our final destination was. We arrived at some place and he told us which way to follow. He told us that we would reach a water canal. After we crossed it, we ... would be in Greece. Before we got into the cab, the driver told us: ‘I served three years’ imprisonment in Greece and I know how to get people into Greece’ ... After he had told us which way to go, he went back. We continued walking and we reached the canal. We couldn’t cross it because it was full of water. We went back. ... The police stopped us... The cab was white ... The taxi driver did not give any money back to me. My friend R. was sitting in the front seat, he talked with him ... We haggled about the price, namely that EUR 160 was too much, that we didn’t have money, but he told us: ‘it’s impossible, if the police arrest me, I’ll go to jail.’”
8.  R.M. stated:
“... We stopped a taxi driver who asked where we would like to go. E. and I told him that we wanted to go to Greece. He asked if we had any travel documents, [like] a passport [or] licence, [and] we said that we were not in possession of any. He told us: ‘if you have no documents, I can take you through another road where there are no police, but you have to pay EUR 160 each or EUR 320 in total’. We told him that we didn’t have a lot of money, so he reduced the price to EUR 100 each. Actually, we paid EUR 160 each, we entered the cab and while driving, we asked him to reduce the price. He agreed to drive us for EUR 100 each and when we stopped, he returned the remainder. We arrived at some place, he hid the car and told us: ‘you’ll take this road, you’ll reach a water canal, which you’ll cross ... and you’ll be in Greece’. He left us there and he went back to Bitola. We walked, as he advised us, towards the canal, but we couldn’t cross it because it was full of water. We joined the road again, I know that we saw a restaurant, then we passed by a police station. We continued walking and after a kilometre, two police officers stopped us ... The taxi driver that drove us ... had a white cab ... While driving, he (the taxi driver) told us ‘if the police stop you, you’ll say that you have paid EUR 10 each and you won’t say that you don’t have visas’. We were also supposed to deny that the taxi driver knew what our final destination was...”
9.  E.J. and R.M. were shown photographs of nine people, one of whom was the applicant. Both of them identified the applicant as the taxi driver who had driven them on the critical date.
10.  On the same date, the public prosecutor successfully requested that the investigating judge open an investigation concerning the applicant on grounds of a reasonable suspicion of smuggling migrants. That request was not based on the migrants’ statements. The investigating judge heard the applicant, who was assisted by counsel. According to the depositions taken on that date, the applicant stated:
“I drive an orange Mitsubishi van ... It was 6.45 pm. when I came back from Ohrid. I stopped at the bus station, which is a regular taxi post. There are two small kiosks where I often drink coffee. I was with D.M. (who was later in the proceedings identified as M.T.) ... a saleswoman was also present ... the two witnesses came and asked me, in Macedonian, if I could drive them to Bukovo village. I accepted and asked that they pay 150 Macedonian denars (MKD) (equivalent to EUR 2.50) ... E.J. said that they did not have a lot of money, so I asked them to pay MKD 120. After I left them in Bukovo, I came back immediately ... I didn’t ask if they had travel documents because they spoke Macedonian and I didn’t suspect that they were foreign nationals ... It is not true that I asked them to pay in euros. I served a prison sentence of three and a half years in Greece for such a crime and I won’t drive anyone, even for a million euros ... The persons concerned (referring to E.J. and R.M.) were not carrying any bags or other baggage with them...”
11.  In an identification parade organised the same day, E.J. and R.M. identified the applicant as the taxi driver who had driven them on the critical date.
12.  As stated by the Government, at 7.30 pm. on 2 November 2005 the migrants were deported to Albania.
13.  On 7 November 2005 the applicant requested that the trial court examine Ms S.S. and Mr M.T., eyewitnesses who had been present at Bitola bus station when he had agreed to drive the migrants.
14.  On 8 November 2005 the investigating judge heard T.S. and B.G., police officers who had apprehended the migrants near the border with Greece. According to their statements, on 1 November 2005 they had apprehended the migrants at the crossroads at a place called Velushina (Veluska raskrsnica). One of them had been carrying an Albanian identity card and a certain amount of Macedonian denars. The migrants had been fluent in Macedonian. They had told them that a taxi driver had taken them to a nearby location which they could not specify. According to T.S., the migrants had stated that the taxi driver had asked them to pay EUR 100 each for the journey. According to B.G., the migrants had paid EUR 150 each. The migrants had said that they were unemployed and wanted to find a job in Greece.
15.  On 11 November 2005 the public prosecutor lodged an indictment charging the applicant with smuggling of migrants. According to the indictment, at 6.45 pm. on 1 November 2005 the applicant drove the migrants from Bitola bus station to the Velushina crossroads, from where they were supposed to enter Greece illegally, but they were stopped by border police of the respondent State. The migrants paid the applicant EUR 100 each for the journey. The public prosecutor requested that the trial court summon T.S. and B.G. and read out the migrants’ statements given in the pre-trial proceedings, as well as admit in evidence court records concerning the identification of the applicant.
16.  At a hearing held on 23 March 2006, the applicant confirmed his statement given in the pre-trial proceedings. After the trial court had drawn the applicant’s attention to certain aspects of the migrants’ statements, the applicant contested the assertion that they had paid him EUR 100 each and claimed that he had asked that each migrant pay MKD 120 instead. He further stated that he had not talked to the migrants during the journey. Lastly, he denied that he had told them that he had served a prison sentence in Greece.
17.  Ms S.S., the saleswoman who had been in the kiosk at the bus station on the critical date, stated that the migrants had asked the applicant to drive them to the village of Bukovo. One of them had bought chewing gum and cigarettes in order to obtain change. She had not suspected that the migrants had not been citizens of the respondent State.
18.  Mr M.T. confirmed that one of the migrants had entered into the kiosk in order to ask for change. He had heard the discussion between the migrants and the applicant and stated that they had agreed a price for a journey to Bukovo, for which the migrants had been required to pay MKD 120-150 each.
19.  The next and last hearing before the trial court was fixed for 13 April 2006. In the absence of a request for examination of any witnesses, the trial court read out the migrants’ statements given before the investigating judge on 2 November 2005. According to the court record of that date, the court did not ask the applicant or his lawyer whether they agreed to the reading out of the depositions. There is also no indication that both the applicant and his counsel stated that they had no objection to the reading out.
20.  In making concluding remarks, the applicant’s legal representative analysed the migrants’ statements and complained that the applicant had not been able to confront them regarding the drop-off location and the price of the journey. As to the latter, he also noted that the migrants had provided inconsistent evidence.
21.  On the same date, the trial court convicted the applicant and sentenced him to one year’s imprisonment. It established that he had driven the migrants from Bitola bus station to the Velushina crossroads, from where they had walked towards the border with Greece but had subsequently been arrested by the police. The migrants had paid EUR 100 each for the journey. The court established that the facts concerning the migrants’ journey and the sequence of events after they had entered the respondent State were as they had described in their written statements of 2 November 2005. Relying on this evidence, the court further established that the applicant had been aware that E.J and R.M. had been migrants from Albania who had entered the respondent State illegally and had no travel documents in their possession. In this connection, it accepted that the applicant had told them that he had served a prison sentence in Greece and that he knew how to get people into Greece. It acknowledged the inconsistencies between the applicant’s and the migrants’ evidence as regards the drop-off location. However, it established that the applicant had driven them to the Velushina crossroads on the basis of the fact that T.S. and B.G. had apprehended the migrants at that location, which was often used for smuggling migrants. It also examined the evidence given by S.S. and M.T., but disregarded it as unreliable.
22.  On 22 June 2006 the applicant, relying on sections 355 §§ 1 (11) and 2 of the Criminal Proceedings Act (the “Act”, see paragraph 28 below), appealed arguing, inter alia, that on the basis of the evidence given by the migrants the trial court had established that (i) he had known that they had been illegal migrants, (ii) he had transferred them to the Velushina crossroads for EUR 100 each and (iii) they had each paid that sum. In this connection, he claimed that it had been unreasonable for him to suspect that E.J and R.M. had been migrants from Albania because they had been fluent in Macedonian and there were many Albanians who lived in Bitola and its surroundings. He complained that he had not been given the opportunity to confront them during the investigation in order to establish the drop-off location and the price of the journey. As to the latter point, he stated that the migrants had provided inconsistent evidence.
23.  At a public session held on 17 October 2006, the Bitola Court of Appeal dismissed the applicant’s appeal and confirmed the trial court’s judgment. After detailed analysis of the migrants’ statements, which it regarded as clear and consistent, the court found no reasons to depart from the facts as established by the trial court with the exception of the drop-off location, which had been irrelevant to the applicant’s guilt. It also considered as irrelevant the fact that the migrants had been fluent in Macedonian since, as they had confirmed in their statements, they had clearly told the applicant that they had intended to enter Greece illegally. The court did not address the applicant’s complaint that he had been denied the right to cross-examine the migrants.
24.  On 13 November 2006 the applicant lodged, on the basis of section 413 of the Act (see paragraph 31 below), an appeal on points of law (барање за вонредно преиспитување на правосилна пресуда) with the Supreme Court, in which he restated that he had not been allowed to confront E.J and R.M. during the investigation in order to establish whether they had been Albanian migrants, how much they had paid him for the journey and whether he had driven them to Bukovo, which was three kilometres away from Bitola bus station and fifteen kilometres away from the border with Greece, or to the Velushina crossroads, which was only one kilometre away from the border. He further denied that he had told the migrants about his prison sentence in Greece.
25.  On 20 December 2006 the Supreme Court dismissed the applicant’s appeal on points of law, finding no grounds to depart from the facts as established and the reasons given by the lower courts. It indicated that it was beyond its competence to examine the applicant’s complaints under section 355 § 1 (11) of the Act and to reassess the facts as established. However, in view of section 409 of the Act (see paragraph 29 below), it found no cogent elements that would conflict with the facts as established. It did not comment on the applicant’s complaint that he had not been allowed to cross-examine the migrants.
26. According to the applicant, on an unspecified date in 2003 his pre-trial detention was ordered on account of smuggling migrants. He was released after three days due to a lack of evidence against him. He did not submit any court decision in this respect.
27.  In other criminal proceedings launched in 2006, the applicant was charged with the smuggling of an Albanian migrant. According to a deposition made on 14 December 2006, Mr N.M., a witness examined on the applicant’s request, admitted that he had transferred the migrant to the border crossing with Greece. The applicant did not submit any other documents concerning these proceedings.